Appeal No. 95-1641
Application No. 07/825,927
a purely theoretical approach alone. See Brief,
page 16.
Appellants, however, have not supplied a copy of this document
to support appellants’ position. Having considered
appellants’ unsupported position, we are convinced that
appellants have not met their burden of proof. In the first
place, a mere attorney argument is insufficient to establish
that the Yamauchi reference is not enabling with respect to a
large scale process. See In re Pearson, 494 F.2d 1399, 1405,
181 USPQ 641, 646 (CCPA 1974) (an argument of counsel in a
brief cannot take the place of evidence in the record). In
the second place, the quote referred to by appellants does not
indicate that Yamauchi’s crystallization process cannot be
carried out in a “large-scale” or a “commercial-scale” based
on the Yamauchi disclosure which includes more than a “purely
theoretical approach”. In the third place, the quote referred
to by appellants does not indicate that the design of a
commercial-scale crystallizer cannot be accomplished by those
skilled in the art particularly in view of the state of the
art known at the time the application was filed.
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